The Court: All right. Court will be in session. Call your next witness.
Davidson: Your Honor, we call Christopher Morgan.
The Court: Christopher Morgan. Have you got them lined up out there so we can --
Davidson: Yes, your Honor.
Fogleman: Your Honor, may we approach the bench just a minute?
(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH)
Fogleman: Your Honor, in regard to Mr. Morgan's testimony, I anticipate they are going to try to cross-examine him from a police report about his alleged statements.
Davis: This is the guy on the videotape.
Fogleman: This is the guy on the videotape. We have watched the entire six hours of videotape, and we don't see any of that on any of those videotapes. And number 1, we don't know the relevance. We don't know of any relevance to this. He did not make any admissions in this statement to the police, and we submit it's irrelevant.
The Court: Well, I don't know how to deal with it. I mean, I read the synopsis of the report as well, and I came to the same conclusion that you did, that there really wasn't any relevant information to be gained by it and it did not amount to a confession of any crime or even come close to it. But I mean, what do you want me to tell them, they can't call him? I don't know what use they are going to make out of him as a witness.
Davis: Judge, I think we may need to have an in-camera hearing because, number 1, he may claim the Fifth Amendment. If he does, that is improper to do that in front of the jury.
The Court: Do you anticipate him taking the Fifth?
Davidson: I don't know.
Ford: I would think, yeah, I don't know.
(mumbling)
Davis: But Judge, the thing that bugs me is John and I spent 6 hours or whatev...well, going through 8 hours worth of videotapes, 2 days and there ain't nothing in there that resembles any admissible evidence and they never bothered to do it, we offered to give them all the tapes and before he gets up here and they create a smoke screen that has no relevance, I think the jury needs to step out and let us find out what the proffered testimony is or if he's going to take the Fifth or what's going to happen.
Davidson: We tried to proffer it the other day. We said that we want to play the 6 hour confession, or the 6 hour tapes. Your Honor said no.
Ford: I think they ought to be able to go into it.
Fogleman: Your Honor, we could, they could talk to just anybody off the street and say well, you know, do you admit to doing it.
Davidson: There wasn't anybody off the street that we picked up and questioned. It was the police department's questioning and the report that contained certain things.
The Court: Oh yeah, I'm going to start the hearing then if it gets to be --
Fogleman: (interrupting) Your Honor, what if he takes the Fifth. I mean, that gives something, may give the appearance of something when there's nothing there.
The Court: Alright, we'll do this.
RETURN TO OPEN COURT
The Court: Alright ladies and gentlemen, I'm going to need to conduct a hearing so I'm going to ask that you step back to the jury room. Again, you are not to discuss the case.
(jury exits the courtroom)
(Morgan sworn in)
Davidson: Are you requesting, your Honor, that we proffer his testimony?
The Court: Well, I thought that's what we were trying to do, the State has objected on the basis that there's no relevancy to anything that he might say to the issue in court. I don't know, so we're going to conduct a denno hearing.
Ford: They're objecting on the basis of relevancy, don't they carry the burden as to establishing that it is non-admissible testimony?
Fogleman : (interrupting) Your Honor, I would also like to state that, that they mentioned before that he had some attorney representing him, that attorney represents him in some collateral matter, not in this matter, and that attorney informed me, I don't know whether he intends to do this, but she informed me that she has suggested to him that he have an attorney before he testify. Now whether he chooses to do that or not doesn't make any difference to me, but I think that's a preliminary question that needs to be addressed.
The Court: Alright. Let the record reflect this is a hearing out of the presence of the jury. Go ahead.
Davidson: Could you state your name please?
Morgan: Christopher Morgan.
Davidson: And Mr. Morgan, where do you currently live?
Morgan: In West Memphis, Arkansas.
Davidson: And where in West Memphis, Arkansas?
Morgan: 1605 South McCauley.
Davidson: 1605 South McCauley?
Morgan: Yes.
Davidson: And uh, could you tell us where McCauley is...on this map.
(mumbling)
Davidson: Let me ask it this way, is McCauley the street that dead ends into Robin Hood woods?
Morgan: I have no idea.
Davidson: You have no idea?
Morgan: I suppose this may be it, that comes around Barton. I'm not sure, it doesn't say.
Davidson: Okay. Is it in the...
Morgan: Yeah, this is it right here.
Davidson: In the northeast quadrant of the city? Northeast part of West Memphis?
Morgan: Yes, yes.
Davidson: Okay. And (pause) Were you questioned on May 17th, 1993, in Oceanside, California?
Morgan: Yes.
Davidson: And were you questioned regarding these murders?
Morgan: Yes.
Davidson: And uh, did you give a 6 hour videotaped statement to the Oceanside, California, police department?
Morgan: I would like an attorney before I answer that question.
(pause)
The Court: Well, I'm going to direct that you answer that question, I can't see that it would tend to incriminate anyone. Did you make a statement is the question, yes or no.
Morgan: Yes.
Davidson: And in that statement, did you confess to committing these murders?
Morgan: No.
Davidson: And I want to ask you, regarding your statements that you made. First of all, where were you on May 5th of 1993?
Morgan: I was on the sand dunes on the Mississippi River, jumping off of the cliffs.
Davidson: Okay. Let's start when you woke up that morning, where were you?
Morgan: I was at my apartment in Memphis, Tennessee.
Davidson: And what time did you wake up?
Morgan: About 1 or 2.
Davidson: 1 or 2, would that be in the morning or the afternoon?
Morgan: Afternoon.
Davidson: And who lives, who lived with you?
Morgan: David Nessler, Brian Holland, Richard Cristaphorey, Frankie Harris.
Davidson: Now slow down, let me get these names again.
Morgan: Brian Holland.
Davidson: Brian Holland.
Morgan: Frankie Harris.
Davidson: Frankie Harris.
Morgan: Richard Cristaphorey.
Davidson: Richard who?
Morgan: Cristaphorey. And David Nessler.
Davidson: Was anybody there when you got up?
Morgan: Every one of 'em.
Davidson: Every one of 'em. And uh, where did you go at that point?
Morgan: Well, I hung around the house for a while and then we decided to go jumping off of the cliffs on the river and then we rented a boat for.
Davidson: Who went with you?
Morgan: Brian, Frankie, no Frankie didn't go, Brian and Richard and a girl named Wendy Holmes.
Davidson: Wendy Holmes?
Morgan: Um hum.
Davidson: Okay and you're sure that these people went with you?
Morgan: Yes.
Davidson: Okay.
The Court: Pull that silver microphone up a little closer to you that way, there you go. Speak into it a little bit.
Davidson: And where is it that you're saying that you went?
Morgan: To the sand cliffs next to the old bridge.
Davidson: At what time?
Morgan: About 4:00.
Davidson: And uh, when did you arrive, when did you leave the cliffs?
Morgan: As soon as it turned night.
Davidson: When?
Morgan: As soon as it turned night.
Davidson: As soon as it turned night. Now, you used to work over in West Memphis, did you not?
Fogleman: Are you referring to a time period that's related to this?
Davidson: I'm referring to a time period of uh, say the summer before. Did you work in West Memphis the summer before May 5th?
The Court: Of what year?
Davidson: That would be 1993, er, 92.
Morgan: Uh, the only places that I can recall working at are Sonic in Marion and Sonic in West Memphis.
Davidson: Okay. And did you also work as an ice cream man?
Morgan: Oh, yes, yes.
Davidson: Tell us what your job was.
Morgan: I sold ice cream in West Memphis or wherever they sent me.
Davidson: And uh, in West Memphis --
Morgan: Um hum.
Davidson: Did you have one of those little trucks where you rode around the area?
Morgan: Yes.
Davidson: You're familiar with the uh, neighborhood that these uh, 3 victims lived in, aren't you?
Morgan: Some of it.
Davidson: And uh, well you lived there didn't you?
Morgan: Uh --
Davidson: Didn't you live on McCauley street?
Morgan: Um, uh, I was wrong about that one, I'm sorry.
Davidson: You was wrong about that one? Okay.
Morgan: Yes.
Davidson: Now do your parents live there on McCauley street also?
Morgan: Yes.
Davidson: And you grew up in this area?
Morgan: No.
Davidson: No? When did you move to McCauley Street?
Morgan: I don't recall the year, it was when I was a freshman.
Ford: A freshman in high school?
Morgan: Um hum.
Davidson: Okay. And so you were familiar with the area, did you know any of these victims?
Morgan: I knew one of the victims, Steve Branch, when his parents would bring him over to play at a friend's house named Bobby DeAngelo.
Davidson: And did you sell ice cream to these three kids?
Morgan: All three of them, yes.
Davidson: All three of them. You knew who they were?
Morgan: No. Well, one of them was an acquaintance, someone I just sold to. I couldn't like, I didn't like, couldn't like put the names with the faces until the other day on the news.
Davidson: Okay. Now so you um, I'm going to go to your statement here so I can move this proffer along. In your statement did, uh, were you questioned by the Oceanside Police Department?
Morgan: Yes.
Davidson: And in your statement, did you say: "Well, maybe I freaked out, then blacked out, and killed the 3 little boys, then fucked them up the ass or something." Did you say that?
Morgan: Yes.
Davidson: You said that?
Morgan: Yes.
Davidson: And did you say: "Maybe I could have; there's no telling what happened." Did you say that to them?
Morgan: Yes.
Davidson: Did you also say: "Do you have a hypnotist?"
Morgan: Yes.
Davidson: And did you say: "Maybe I'm Chris and Hyde"?
Morgan: I don't remember that.
Davidson: Did you say: "Well, if I did kill the kids and I blacked out or something, well, I'll go to jail and I would expect that"?
Morgan: If I blacked out and did that.
Davidson: You said each one of those things to the Oceanside Police Department?
Morgan: Yes.
Davidson: Did the Oceanside Police Department perform a rape kit on you?
Morgan: Yes.
Davidson: And uh, did they question you about why the tip of your penis was red?
Morgan: Yes, they did.
Davidson: And what was your response to that?
Morgan: It's been that way all my life.
Davidson: It's always been that way. And uh, did they make notes, as far as you know, about that unusual redness?
Morgan: The nurses asked that, I don't know if they wrote down what I said.
Davidson: When did you go to California?
Morgan: Maybe 3 or 4 days afterwards, after the murders.
Davidson: 3 or 4 days after the murders, you went to California. And to your knowledge, well, how were you first contacted in California?
Morgan: My parents called to where I was staying and they informed me that I needed to get in touch with Oceanside Police Department and I did that and I
went down to the police department and then they questioned me.
Davidson: Now during one point in the interview, did you put a Kleenex over the videotape machine?
Morgan: Yes.
Davidson: You didn't want to be seen on this videotape, did you?
Morgan: I was just sick of being there.
Davidson: You were just what?
Morgan: Sick of being in that little room.
Davidson: And uh, so they talked to you for how long?
Morgan: 17 hours.
Davidson: 17 hours?
Morgan: Yes.
Davidson: Over a period of different --
Morgan: 2 days.
Davidson: 2 days. And on this particular day that you said these things, um, uh, how long had you been there that day?
Morgan: I have no idea.
Davidson: Did you take a polygraph exam?
Morgan: Yes.
Davidson: Did you flunk the exam?
Morgan: They say I did.
Davidson: They said you did. (pause, flipping pages) Now in your statement that you made to the police out there um --
Fogleman: What page are you referring to?
Davidson: Uh, fifteen.
The Court: Are you referring to that synopsis of, of a bunch of tapes? Is that what you're referring to?
Price: It has quote marks, Judge.
The Court: But it doesn't have the full context of it?
Price: Yes sir.
The Court: Okay.
Davidson: Well your Honor, we would not know whether it had the full context of it --
The Court: (interrupting) Well you could have reviewed the tapes --
Davidson: (continues) it's the same thing that has gone on with every police report --
The Court: -- You could have reviewed the tapes. Have you reviewed the tapes?
Davidson: No.
The Court: Why not?
Davidson: We tried to proffer them the other day, your Honor, we --
The Court: (interrupting) I want to know, have you reviewed them.
Davidson: No. We would be glad to play them, your Honor.
Fogleman: We would, too.
Davis: We would too, your Honor. All 8 hours.
Price: That's fine.
Davidson: That's fine.
Ford: The question is proper, though. The question is proper. He can answer the question. He admitted those statements.
The Court: Well, depends on how you look at it, I guess.
Davidson: Mr. Morgan, did you tell the police out there, did you say uh, become hostile and say: "What do you want me to do, lie to you? I'm going to lie to you, I'm gonna lie." Did you say that?
Morgan: Yes.
The Court: Now what did you follow that up with?
Morgan: By saying that I killed 'em and then I cut their arms and legs off (mumble)
The Court: Well, before you told them you killed somebody, you told them you were gonna lie 3 times?
Morgan: Yes.
The Court: And then after you said that, what did you say?
Morgan: I, I tried to tell them that I killed 'em.
The Court: Now after you told them that, what did you tell 'em?
Morgan: From what I recall, I may have told them that, "Are you happy?" and he said "Is that the truth?" and I said "No." And he goes, "No."
Davidson: Did you also say that they were just 10 feet apart from each other in the swamp, in the ditch, I don't know how they killed them?
Morgan: I don't remember, but if it's on the tape, I guess I did.
Davidson: Did you say that you were tired of people trying to accuse him, uh, you of the killings?
Morgan: After 17 hours, I believe anybody would.
Davidson: And you told them you were telling the truth, didn't you?
Morgan: I told them I was lying to 'em.
Davidson: Well, did you tell them you were lying or did you tell them that you had been telling them the truth?
Fogleman: Enter the context about what you are asking him about not -- the State's going to object your Honor. I object to him just asking, he's already testified that he told them he was gonna lie and then said this stuff about killing 'em and then he's now asking him, well, were you telling the truth or lying? Well what -- what's he talking about?
The Court: At what point?
Davidson: Did you, regarding the polygraph uh, did you tell them that you were lying or telling the truth?
Morgan: Told them that I was telling the truth.
Davidson: Now, let's go back to where you --
The Court: (interrupting) And I suppose, I suppose the reference to the polygraph uh, are you suggesting that I allow you to bring that up to the jury?
Price: No.
The Court: If you are, we're gonna bring up a lot more polygraphs --
Price: We're not suggesting that, your Honor.
The Court: -- that I don't think you want in.
Price: Your Honor, we are not suggesting that.
Davidson: We are not suggesting that, your Honor.
The Court: Okay, well why ask it --
Davidson: We came out the other day on this --
The Court: Why ask it? Why ask it at this time?
Ford: Your Honor, are you aware of evidence of polygraphs?
The Court: I beg your pardon?
Ford: Are you aware of evidence of polygraphs?
Fogleman: There has already been testimony in this trial about it.
The Court: I've heard quite a bit of testimony, Mr. Ford, and I don't think that, that's the thing that needs to be bantered around, I get the impression that this is being done for some kind of a show.
Davidson: No show, your Honor.
The Court: Uh, well...
Davidson: This guy has said that he did it. I want to be able to give that to the jury, and that's the purpose of this proffer.
The Court: Alright. Go ahead.
Davidson: Where were you on May 5th after, after you went uh, swimming out on the river?
Morgan: I went to the Cambridge Apartments where I was staying, and I took a shower, and then I went to the club.
Davidson: What club?
Morgan: Red Square.
Davidson: Red Square?
Morgan: Um hum.
Davidson: Uh, did you work that day, on May 5th?
Morgan: No.
Davidson: Did not work?
Morgan: No.
Davidson: Did you have a job at that time?
Morgan: Yes.
Davidson: Isn't it true that you told the Oceanside Police Department that you had worked that day?
Morgan: I may have worked the day before.
Davidson: Isn't it true that you told them that on May 5th that uh, you had worked?
Davis: Your Honor, again I object. What he's reading from is, is, is a paraphrase, and I've watched the tapes and I know, and I know what he did say. And if he wants to cross-examine him from what's said on the tapes, what he said was, one of the 2 days, the 4th or 5th, it rained and he didn't go to work and he wasn't sure which day it was.
Davidson: Your Honor, is Mr. Davis testifying? He's, he's, Judge --
The Court: No, I'm going to sustain the objection, unless you have a transcript of the proceedings or want to proffer the exact tapes themself and make reference to it, then I am going to sustain the objection.
Price: Then we want a copy of the transcript that the West Memphis Police Department have made of these tapes, your Honor.
The Court: Is there a transcript?
Fogleman: We don't have a transcript, since we watched it.
Price: Because we have, my client is an indigent, we have been unable, we could not afford a transcript of the tape.
Fogleman: Your Honor, the tapes were available for them to watch, they've been available --
The Court: Yeah, I left here last Thursday and those tapes were available for your review.
Ford: Is it an improper question to ask, it is improper cross-examination to, to take a synopsis --
The Court: Now you do have an objection or are you asking the Court a question? Phrase it, what is your objection?
Ford: I'm arguing here that the proper question, that it limits the question to this witness. I can ask him questions from any document I want to, I just can't show him a police report and admit it into evidence. But I can ask him a question. If I make synopsis, if I make, I can take a compilation and hold it in my hand and ask him from that document --
The Court: (interrupting) You can ask him any question you choose to. If you are going to try to impeach his testimony by a prior inconsistent statement then I'm going to require you to do two things. One, confront him with that prior inconsistent statement. Two, give him an opportunity to explain it. Now that paraphrased stuff there is not gonna cut it. Now if you want to go through 8 hours of tapes and single out the portions of that tape you wanna impeach him by, give him an opportunity to review it and explain his answers, then you'll be permitted to do that.
Price: Judge, the only point that we'd like to add is that the State was allowed to question my client about a paraphrased stuff in statements that he allegedly made and that's why this certainly ought to be permissible.
The Court: Okay, you're going to have to explain where there was any paraphrase.
Price: Well Judge, my client talked to West Memphis Police Department on May the 10th for 8 hours --
The Court: Alright.
Price: -- they didn't bother to transcribe that. They didn't bother to have a tape run.
The Court: (interrupting, stammers) I seem to recall that they had uhh, minutes, notes, and records, and that he was questioned about it and acknowledged it.
Price: Well, that's what, we can certainly ask about, minutes, notes, records, that's what this report is, Judge. And we can do exactly what the State was allowed to do.
The Court: You're not going to be allowed to do it in this court. You're going to be able to do it just like I said if they object to it.
Price: Note our objection, your Honor.
The Court: Alright.
Davidson: Your Honor, we'd like to have a 5 minute recess in order to go down and get the uh, recorder and the video recorder --
The Court: (interrupting) Fine, get it.
Davidson: -- and play it, and play it for this man.
The Court: Alright, fine.
Ford: Your Honor, may we question him, may we question him?
The Court: Yes.
Ford: Are you finished?
Davidson: I'm going to go get the recorder, you can go while I'm gone.
Davis: Well, if we are going to play it for him, because we can go ahead and recess the jury 'til Monday if you are going to listen to those privately.
Fogleman: You can ask him and live with his answers. You don't have to if you don't want to.
Davidson: If we do, we do.
Fogleman: You just ask him the questions.
The Court: I'm gonna allow you to ask him anything you want, you can ask him if the moon's made of green cheese.
Price: We object to relevance.
Ford: We may do that. We may ask him that.
The Court: And I would sustain the objection too.
(mumbling)
The Court: Go ahead.
Wadley: Thank you, your Honor. Your name is Chris Morgan?
Morgan: Yes.
Wadley: And Mr. Morgan, how old are you?
Morgan: 20.
Wadley: And what's your birthday?
Morgan: November 15th, 1973.
Wadley: Let me take you back to May of 1993. Do you recall where you were on the 4th day of May, 1993?
Morgan: Not clearly, no.
Wadley: No recollection of that?
Morgan: Either I was at work or if I wasn't at work, I was on the sand.
Wadley: Now you've been asked about, you've been asked by the police department of Oceanside, California as to your whereabouts on May the 4th, is that right?
Morgan: I'm sure they asked that question.
Wadley: Okay. And let me ask you this, how did you come across to show up at the Oceanside Police Department? How did you come to show up down there?
Morgan: I believe I've already answered that question.
Wadley: I didn't hear you, I'm asking you sir, how did you get down there?
Morgan: Umm, how did I get to the police department?
Wadley: What caused you to go down there?
Morgan: My parents called where I was staying and said that they needed to question me and I had my sister's uh, in-laws take me down there.
Wadley: And what, when did you go down there?
Morgan: I don't know the date.
Wadley: You don't know the date you went down there?
Morgan: No.
Wadley: Okay. Did they ask you to come down there?
Morgan: Yes.
Wadley: Okay. They didn't come out and arrest you did they?
Morgan: No.
Wadley: And they didn't come out and say 'you're coming with us,' correct?
Morgan: No.
Wadley: You voluntarily went down there, isn't that right?
Morgan: Yes.
Wadley: Okay. And when you get down there, what happens?
Morgan: They put me in a small room and locked the door and wouldn't let me out.
Wadley: Okay. Now they were nice to you weren't they?
Morgan: When they weren't questioning me.
Wadley: They were always nice to you, weren't they?
Morgan: When they weren't questioning me.
Wadley: Did they ever mistreat you in any way?
Morgan: Locking me in a room.
Wadley: Well, did they deprive you of anything? They didn't do that did they? You've never made a complaint about that have you?
Morgan: No.
Wadley: And they brought you in a room and they started asking you some questions, is that right?
Morgan: Um hum.
Wadley: And one of the questions they asked you was where were you on May the 4th?
Morgan: Probably.
Wadley: And what did you tell them?
Morgan: I was either at work or jumping off the sand, I suppose.
Wadley: You were jumping off the sand?
Morgan: Um hum.
Wadley: Now were you jumping off the, you could have been jumping off the sand on the 4th?
Morgan: I did it just about every day that I wasn't at work.
Wadley: Okay, where did you work?
Morgan: Mr. Pride Car Wash.
Wadley: Okay. And where is that car wash located?
Morgan: On Poplar.
Wadley: In Memphis?
Morgan: Um hum.
Wadley: Okay. Now, do you recall on the 4th whether or not you were jumping off a bridge or sandbar or whatever you were jumping off of?
Morgan: I did it every day that I was off and it wasn't terrible outside.
Wadley: Okay. Do you recall the weather on the 4th?
Morgan: No.
Wadley: Well, what makes you think that you were out there on the 4th and, or what makes you feel that you were there on the 4th?
Morgan: Because I did it every day for about a month, if I didn't work.
Wadley: When did you start doing that?
Morgan: We went down to the sand one day to snowboard down it, and it was a big cliff and then we decided to jump off, I have no idea when.
Wadley: Mr. Morgan, it would be fair to say that you don't know where, that you're not sure where you were on the 4th, would that be fair to say? You can't tell where you were on the 4th, can you?
Morgan: Between two places, it's a 50/50 chance that I was either at work or in the sand.
Wadley: Okay. Now they also asked you where you were on the 5th, didn't they?
Morgan: Probably.
Wadley: Okay. And what did you tell them?
Morgan: I was either jumping off the sand or at work.
Wadley: Don't know that either, do you?
Morgan: It's one of the two.
Wadley: Is that another 50/50 thing?
Morgan: One of the two.
Wadley: What time did you go out and jump off the uh, the uh, what you were jumping? If you were doing that.
Morgan: I usually went about 3 or 4 o'clock.
Wadley: When did you get finished?
Morgan: When it turned dark.
Wadley: And uh, what did you do after that on that day?
Morgan: What day was it?
Wadley: On the 5th.
Morgan: What day?
Wadley: May the 5th.
Morgan: Monday, Tuesday, Wednesday, Thursday, or Friday.
Wadley: Thursday, excuse me.
Morgan: Was it a Thursday?
Wadley: The 6th, what were you doing on the 6th?
Morgan: The 6th was a Thursday?
Wadley: Yeah.
Morgan: Uhh, Thursday night or Thursday day?
Wadley: Thursday day.
Morgan: Either jumping off the sand or either sleeping or at the apartment hanging out.
Wadley: So, all you do is either go to work or jump off a cliff, is that what you're telling us?
Morgan: Um hum.
Wadley: Is that all, who, who do you go with when you do these things?
Morgan: Brian Holland, Frankie Harris sometimes, David Nessler sometimes.
Wadley: On the 5th, on the 5th were you jumping off, were they with you on the 5th?
Morgan: If we went on the 5th, if I wasn't at work.
Wadley: Now, did you have set hours at work, when you worked?
Morgan: I worked from 8 in the morning 'til 6 at night.
Wadley: When you worked, that's when you were there? 8 'til 6 is that correct?
Morgan: Um hum.
Wadley: Okay. So if you weren't at, if your memory, if you're not sure whether you were jumping or not, you would have been at work from 8AM to 6PM on
Wednesday, May the 5th, is that right?
Morgan: Yes.
Wadley: Okay. And the same thing on the 6th, would that be also true?
Morgan: If I worked.
Wadley: Okay. Now, did they talk to you about uh, going to California?
Morgan: Yes.
Wadley: Okay. Now, when did you leave to go to California?
Morgan: I don't recall the specific date.
Wadley: Okay. You don't recall when you left?
Morgan: It was 3 or 4 days after the murders.
Wadley: Okay. And who did you go with?
Morgan: Brian Holland.
Wadley: Who else did you go with?
Morgan: A girl named Beth Cleavis and Rick Johnson.
Wadley: And where did you go to? What city did you arrive at?
Morgan: Oceanside. It was, was our destination.
Wadley: Okay. Now did all of you arrive at Oceanside together?
Morgan: No. They dropped us off, I think at, I don't remember like where they dropped us off, but it was like a 2 hour drive from Oceanside.
Wadley: Okay. And these officers, they're asking you the same questions that I'm asking you, isn't that right? These questions that I'm asking you, where were you at on the 4th, where were you at on the 5th, how did you get to California, those were the questions they were asking you isn't that right?
Morgan: Yes.
Wadley: And they were asking you those questions just like I'm asking you these questions, isn't that true?
Morgan: Yes.
Wadley: Okay. And I've done, certainly done nothing to uh, harm you or intimidate you in any way, have I?
Morgan: No.
Wadley: And they were talking just like I've been talking to you, isn't that right?
Morgan: Uhh, no.
Wadley: You just told me a couple of seconds ago, they were.
Morgan: Not just like it. Their tones were a lot different. I was in a locked room.
Wadley: Did they ever strike you?
Morgan: No.
Wadley: They ever grab you?
Morgan: No.
Wadley: They ever threaten to hit you?
Morgan: No.
Wadley: Okay. Now, did they ever, have you ever been accused of killing anyone before?
Morgan: No.
Wadley: That's never happened, has it?
Morgan: No.
Wadley: Okay. Now, are you saying that you were upset when you were in there?
Morgan: Very much so.
Wadley: Do you get upset a lot, Mr. Morgan?
Morgan: When I'm accused of something, like the murders of 3 young boys.
Wadley: And when they started questioning you about that, did that bother you?
Morgan: No.
Wadley: It didn't bother you?
Morgan: Not after the first oh, 13 hours, I suppose.
Wadley: When you first got there, they were questioning you, did that concern you? Were you bothered by that?
Morgan: No.
Wadley: You weren't, were you?
Morgan: No.
Wadley: You weren't bothered by the fact they were questioning you at all, isn't that right?
Morgan: Uhh, not for about the first 13 hours.
Wadley: Okay. And what, when did they first question you? These first 13 hours you're talking about, when did that occur?
Morgan: I have no idea.
Wadley: You don't know what day it was?
Morgan: Nope.
Wadley: Well, how long did they question you in total?
Morgan: In total, with the 2 days of questioning? 17 hours.
Wadley: Okay. Did you, you were there one day and then came back another day?
Morgan: Yes.
The Court: Did they advise you of your rights under Miranda and go through all those formalities and did you sign a form and agree to talk to 'em?
Morgan: They didn't advise me of my rights or anything like that. I just said I would talk to 'em.
The Court: What good would a video be if you didn't advise somebody of your rights?
Wadley: Well Judge --
Ford: The police don't have to advise someone of their rights if they feel it's non, if it's noncustodial.
The Court: When you lock the door, are you gonna tell me that's noncustodial?
Ford: It's a question of fact, your Honor.
Fogleman: Well your Honor, at one place on the tape, and I'm not sure if it was Mr. Morgan or another one, the officer walks out of the room and he says: "I'm
going to lock this door."
Wadley: Judge, he can ask him all the questions he wants to ask him, when it's his turn.
The Court: Well I'm trying, I'm trying to get down to the nuts and bolts of this I'm mean it's --
Ford: Ask him why he went out there. Ask him how long he's been planning this.
The Court: Go ahead, ask him if you want to.
Wadley: When did you go out to California?
Morgan: When?
Wadley: Yes sir.
The Court: When or why?
Wadley: Why did you go out there?
Morgan: I went to pick up a friend's car that had gotten into some trouble and his parents had like set up with his friend that they told him that his father was like sick, so he went back to Georgia on a plane, and they left his car there and me and my friend Brian went out to pick it up and bring it back.
Wadley: And what are these people's names? That you, this car, who are these people?
Morgan: This guy named PJ.
Wadley: Pardon me.
Morgan: A guy named PJ. I don't know.
Wadley: PJ?
Morgan: Yeah.
Wadley: What's his last name?
Morgan: I don't know.
Wadley: Is he your friend?
Morgan: Brian's friend.
Wadley: And you don't know who he is?
Morgan: I met him about 4 or 5 times and then I just stopped going out for a while.
Wadley: And you're working, you're working over at the uh, the car wash, is that right?
Morgan: Um hum.
Wadley: And you've got a job there.
Morgan: Um hum.
Wadley: How long were you gonna be gone?
Morgan: Well, I quit that job.
Wadley: When did you quit that job?
Morgan: When?
Wadley: Yes sir.
Morgan: When I left for California.
Wadley: So you just quit on that day?
Morgan: Um hum.
Wadley: Now when they were down questioning you, they weren't mistreating you, you've already told us that, isn't that right?
Morgan: Besides locking the door and uh --
Wadley: (interrupting) Other than locking the door, they weren't doing anything to you were they?
Fogleman: (interrupting) Let, let him finish the answer.
Wadley: Is that --
Fogleman: Let him finish the answer, please.
The Court: (starts to speak)
Wadley: Please finish your answer, Mr. Morgan.
Morgan: Not physically.
Wadley: Okay. When someone accuses you of doing something, uh, did they ever accuse you of doing this murder?
Morgan: Not that I recall, they may have.
Wadley: You don't recall that, do you?
Morgan: No.
Wadley: But when you're asked about it, you're not denying the fact that you said -- (flipping through pages)
The Court: If you're going to read a quote from that paraphrased portion of an 8 hour tape, read the whole thing.
Wadley: Did you tell 'em "maybe you freaked out and killed the three little boys," did you tell the police officers that?
Morgan: And then I told him he could have freaked out and killed the little boys.
Wadley: My question was, did you tell the police that?
Morgan: Yeah.
Wadley: Did you tell the police "maybe I freaked out and maybe I killed these three little boys," is that what you told 'em?
The Court: Tell him all of what you told him.
Morgan: I told him, who knows --
Wadley: (interrupting) First of all, did you tell him that?
Morgan: No, I'm --
Davis: Your Honor, let him, the Court asked him a question, I think --
Wadley: Did you tell him that?
Morgan: Yeah.
Wadley: Okay. You told him that?
Unknown: Your Honor --
The Court: Alright. Now what else did you tell him?
Morgan: I told him anybody could've done it, it could have been him, he could have blacked out, flew to Memphis and killed the 3 little boys.
Wadley: So, so you're saying that you implicated yourself by telling them that you did it, didn't you?
Morgan: I told 'em I could've done it if I'm blacked out.
Wadley: Do you black out? Do you have black outs?
Morgan: No.
Wadley: You just made that up?
Morgan: Yup.
Wadley: You just made up the fact that you killed 3 little boys to a police officer in Oceanside, California, is that what you're saying?
Morgan: Um hum.
Wadley: Just to get out, just to get away, just to leave?
Morgan: Yeah.
Wadley: You weren't even under arrest were you, Mr. Morgan?
Morgan: No.
Wadley: You could have left anytime you wanted to, couldn't you?
Morgan: Nope.
Wadley: You couldn't?
Morgan: They wouldn't let me leave.
Wadley: Were you under arrest?
Morgan: Nope. But they wouldn't let me leave.
The Court: Are we gonna have to listen to 8 hours of tapes?
Wadley: Did they also ask, did they also ask you if you're a homosexual?
Morgan: Yes they did.
Wadley: You're a homosexual, aren't you?
Morgan: No.
Wadley: You're not?
Morgan: Nope.
Wadley: Didn't you tell them that you were?
Morgan: I told them that I was not a homosexual.
Fogleman: I would like to see where that is in here.
Davis: Your Honor --
Wadley: Did you tell them first that --
Davis: Your Honor, before, can we approach the bench just for --
Price: We object to approaching the bench. This is an in-camera hearing. We can certainly do it here.
(all talking over each other)
Davis: The Court has some discretion as to -- I just don't want the guy to be put through this stuff. That is improper and totally irrelevant to these proceedings.
The Court: I am going to sustain the objection to the last question and ask --
Wadley: For what, what basis, your Honor?
The Court: It's an improper question.
Wadley: Why, your Honor?
The Court: Well, you know, I guess people have a right to, to have some privacy even though they do take the stand and I don't think that's an appropriate question. And I'm not going to allow it.
Davis: I don't mean to infer from that that he is. If they viewed the video --
The Court: I'm not making any inference one way or the other. I read the material that they have as well, and I know what you're referring to but I, there's absolutely no point in asking the witness this at this time.
Wadley: The relevance to it, Judge, is he stated what he did to the 3 little boys when he said that, and he was asked whether at first he was homosexual and he denied it, he later admitted it.
Fogleman: No, he did, never did.
The Court: No, he did not.
Unknown: (inaudible) didn't listen to the tapes.
Wadley: You don't have all the tapes evidently.
Fogleman: I believe so.
Wadley: You don't have all the tapes.
Ford: Rob, Rob -- I think we've established that the relevance, they want to rehabilitate him, that goes to weight but not to admissibility.
Wadley: Your Honor, now that question that I asked is proper and that answer should not be stricken.
The Court: Do you have anything else you want to ask him?
Wadley: No, your Honor.
Davidson: I've got a couple of questions, your Honor. Did you dr, dr --
The Court: Now, wait just a minute. Wait a minute!
Davidson: Excuse me.
- tape flipped -
Morgan: ...closer.
Davidson: Yes, you may.
The Court: Yeah, let 'em go to lunch. One o'clock. I'm gonna send the jury to lunch.
Price: Alright.
Morgan: Yes.
Davidson: This is your drawing?
Morgan: Yes.
Davidson: And does this drawing uh, uh, show where the bayou is and where the Robin Hood woods are?
Morgan: Yes.
Davidson: And it shows where McCauley Street is?
Morgan: Um hum.
Davidson: Your Honor, we'd introduce this as part of the proffer. Actually, it's already been proffered the other day.
Fogleman: I don't have any objection at that point in questioning, do you mind if we ask a question right now about the diagram?
Davidson: Let me ask one more first.
Fogleman: Alright.
Davidson: Uh, did they also take your footprints?
Morgan: Yes.
Davidson: Will you proffer these (inaudible)
Fogleman: You talking 'bout the shoe prints?
Davidson: Shoe prints.
The Court: Alright.
Fogleman: And on the diagram, you put uh, the bayou, Blue Beacon, and then to the um, to this, to the right side from the top put Robin Hood, right?
Morgan: Um hum.
Fogleman: Okay. Which would be uh, that would be west of Blue Beacon, right?
Morgan: Yes.
Davidson: And, but you have it there at the end of Mc -- by the Blue Beacon.
Fogleman: No.
Davidson: Is that correct?
Fogleman: No.
Davidson: It's by the Blue Beacon. Well, it'll speak for itself.
Fogleman: Well, you're by Jason Baldwin over there, I guess.
The Court: You trying to put out it's on the opposite, he's drawn it on the opposite side from where it really is?
Fogleman: Yes, your Honor.
The Court: Alright.
Davidson: Uh, I understand what he's saying. I don't agree with it.
The Court: Well, I do too. I think anybody else does, too.
Davidson: Uh, we would offer these as part of the proffer, your Honor.
The Court: Alright. Part of the proffer. Any other questions you want to ask him?
Fogleman: Your Honor, as part of the proffer, didn't you also tell the officers that you understood the little boys had their arms cut off?
Morgan: From rumors, yes.
The Court: Did you have anything at all to do with the murders of those 3 boys?
Morgan: No, I did not.
The Court: Before you made the statements that are attributable to you, uh, did you preceed that by telling the officers in an angry state that 'if you want me to lie to ya,' and repeat yourself three or four times, 'I'll lie to ya and tell ya that I did it,' is that what you said?
Morgan: Yes I did.
The Court: And immediately after that, did you again deny any knowledge or any activity involved in those murders?
Morgan: Yes.
The Court: Anything else?
Wadley: Judge, I would like to, if I could, I would like to continue my proffer on the questions that I was asking him in that uh, about, concerning the sodomy this man said he performed, and could have performed on these boys, in that Judge, it is relevant in that...they attempted to elicit testimony from the medical examiner that that was possible. He says that he may have done it, and then he says that he may have blacked out, and that the question of his sexual preference is certainly relevant, your Honor.
Davis: Your Honor, that's what it all boils down to, when he says, he tells the officers 'If you want me to lie to ya, I'll lie to ya. I'll lie to ya if that's what you want me to do. I'll lie to ya and tell you I blacked out and did it,' if he prefaces it and says 'What I'm getting ready to tell you is not true' then he later says that what he said was not true, then the fact that you say it uh, has no significance or relevance for this trial, and then to go into an area like that, to accuse him of a, to go into an area of determining whether, what motives for those statements is just ludicrous.
Wadley: They have been trying to prove motive this entire trial. Your Honor, that goes to weight.
Ford: Your Honor, Jessie Misskelley denied that he did it, denied that he did it, admitted that he did it, denied it, denied it, and he is in prison.
Davis: No.
Ford: This man did the same thing. He denied it, admitted it, denied it. Your Honor, that goes to weight, not to admissibility. It is a question of fact for the jury. And this testimony is relevant.
The Court: Relevant to what?
Ford: It is relevant to who committed these murders and that young man said he did it. That's relevant. It is a question of fact. And we are asking for you to allow us to present this testimony to the jury.
The Court: (interrupting) Alright. Have you had your investigator check his work records to see if he was at work on any of the dates involved?
Ford: I don't, I don't have any --
The Court: (interrupting) Have you checked out the people that he's indicating that he was with to determine whether or not he was with them?
Ford: Your Honor, that goes --
The Court: (interrupting) Is that not relevant?
Ford: Sure it is, and if they want to rehabilitate him, they can do it but he made the statement and that's a question of fact and they can present all of that they want if they choose to.
The Court: You want to say anything?
Davis: Your Honor, the statement that he made under the context, if, if I tell you now that I am going to tell you a lie and then I make a statement, that statement has no relevance because I told you beforehand that it's not a
reliable statement. And under these circumstances, they keep talking about the statement, but that's the context in which it was made in. And the context
indicates that it has no reliability or relevance to this case and they just wanna throw it in a hopper to create a smoke screen or create some stir. This is, there is absolutely no relevance for somebody to say 'I'm gonna lie' and then make a statement, that statement should not be admissible because it's not reliable because they said in the first place they weren't telling the truth.
Price: We are entitled to raise reasonable doubt and that's what we're trying to do with this testimony.
The Court: Raise it or create it?
Price: Both.
Ford: Your Honor, we ask that we be allowed to ask these witness these questions and we would ask that you would rule on whether or not, the State's objecting on basis of relevance, and we ask for your ruling as to whether or not this is relevant testimony.
The Court: What? You talking about the whole thing or just your portion of the proffer that I wouldn't allow you to go into, what, wh, which is it?
Ford: We want to be able to ask this witness --
Price: (interrupting) The entire proffer.
The Court: Do you want to ask the full 8 hours, do you want to introduce the tapes?
Price: Alright, Judge, if the state says --
Ford: Your Honor --
The Court: I mean, if there's anything significant about it, I guess it would be the 8 hours of interrogation.
Ford: Your Honor --
Price: (interrupting) Where's the other 9 hours, Judge? He testified --
The Court: (interrupting) I don't know.
Ford: (interrupting) Your Honor, we want to be able to ask him questions. We want, we say we have established that it's relevant, we want to be able to ask him questions. We don't have to impeach him if we don't want to. We can ask him questions and if he says, based on his answers here, we can ask him did you tell the police, did you black out, did you freak out, did you kill these boys, did you fuck them up the ass. That's what he said, he said that he said those things, we want to ask him that question, we believe that's relevant. And we ask for you to rule as to whether or not that is relevant evidence in this homicide case.
The Court: Alright, what else, Mr. Wadley, you wanna ask the other questions that you, in your proffer?
Wadley: Sir?
The Court: You wanna ask your other questions as a proffer, or are you suggesting that you be allowed to ask that in front of the jury?
Wadley: Your Honor, I, I 'd like to do both, but I --
The Court: Well, go ahead on your proffer of proof.
Ford: Wait a minute, wait a minute. Your Honor, I thought this proceeding was not a proffer but this was an in-camera hearing to determine whether or not his testimony is relevant --
The Court: It's either going to be an in-camera hearing to determine relevancy or a proffer of proof, one or the other, when I get ready to make my ruling.
Ford: Well, we'd ask for a ruling.
The Court: Well, I'm not ready to rule now.
Ford: We're through with our proffer at this point.
The Court: Are you through, do you want to abandon that then?
Ford: No, we're not abandoning anything, your Honor.
The Court: (interrupting) I'm asking Mr. Wadley, and both of you aren't going to be able to take a witness, which one of you want to do it?
Ford: We've asked him enough questions --
The Court: Which one of ya want to take the witness, I ask?
Ford: We're through with what is considered a proffer, but we ask you for a ruling.
The Court: You got anything else?
Davis: No, sir, your Honor, I think --
The Court: (interrupting) Alright, court will be in recess until 1:00. You will have to come back at 1:00.
Morgan: Yes, sir.
(mumbling)
RECESS
POST RECESS RULING --
The Court said I am ruling that I am going to allow the inquiry of the witness in the presence of the jury. He requested a lawyer so I have asked Jim Lyons to interview him. Do you have another witness you can proceed with right now and then come back to this one? (TR 2889)
MR. FOGLEMAN: We would like to move in limine that when he testifies that it not be referred to that he requested an attorney.
